SNAPP INDUSTRIES, INC.

v.

MIAMI-DADE COUNTY

Before: TRAWICK, WALSH, and SANTOVENIA, JJ.

TRAWICK, J.

[*1] Appellant, Snapp Industries, Inc. ("Snapp"), appeals a decision rendered by a Hearing Officer on February 28, 2019, finding Snapp in violation of section 33-8(a) of the Code of Miami-Dade County (the "Code") for operating a business without a valid Certificate of Use ("C.U.").

Snapp owned and operated a business at 2902 N.W. 22nd Street, Miami, Florida (Lots 39-41, Folio Number 30-3128-017-0100) (the "Property"). Snapp was issued a citation at the Property on March 28, 2001, for an alleged violation of Code section 33-260, (Uses confined to building) for failure to conduct a business from within a completely enclosed building. Snapp's then attorney wrote a letter to a County Neighborhood Compliance Supervisor to verify that the citation would be dismissed based upon the County having received a copy of a valid Zoning Use Permit. The letter apparently referenced a document from 1974 captioned "Zoning Use Permit, Certificate of Use and Occupancy" and includes a building permit number (the "C.U./Building Permit"). It was issued to "Snap Inc,"¹ listing a different street address and legal description, respectively, 2178 N.W. 29 Avenue and "Lot 42 44 No River Dr."² On August 21, 2001, a County Hearing Officer dismissed the prior citation.

N 1 While the 1974 C.U. was issued to "Snap Inc," this appears to have been a scrivener's error by the responsible County official. However, we make no finding on this point. N 2 Snapp asserted during oral argument that Snapp property rests on a number of lots at the intersection of N. W. 22nd Street and N.W. 29th Avenue. While this may help explain the address discrepancy in the 1974 C.U., we again make no finding on this point. [*2] On October 27, 2018, a Miami-Dade County Compliance Officer issued a courtesy warning notice advising Snapp that it was in violation of Code section 33- 8(a) (Certificate of use) for operating a business at the Property without a C.U. On November 29, 2018, after Snapp failed to comply with the warning notice, Miami- Dade County (the "County") issued Uniform Civil Violation Notice (T079358) for the alleged violation of Code section 33-8(a). An Administrative Hearing was held on February 28, 2019, after which the Hearing Officer issued her "Findings of Fact and Conclusions of Law" affirming the citation. This appeal followed.

Circuit court review of an administrative agency decision is governed by a three-prong standard of review: "(1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent, substantial evidence." Bennett D. Fultz Co. v. City of Miami, 2005 WL 5302110 (Fla. 11th Cir. June 7, 2005) (citing Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993); Metropolitan Dade County v. Blumenthal, 675 So. 2d 598 (Fla. 3d DCA 1995), rev. dismissed, 680 So. 2d 421 (Fla. 1996)).

Snapp alleges that they were denied due process when they were not permitted to make a proffer to preserve an issue for appeal at the conclusion of the hearing. A [*3] denial of a party's request to make a proffer to the court for the record constitutes a denial of due process. Martinez v. Bank of New York Mellon, 198 So. 3d 911, 914 (Fla. 3d DCA 2016). See also Garcia-Mathies Interiors, Inc. v. Pere, 259 So. 3d 213, 216 (Fla. 3d DCA 2018) (petitioner not allowed the opportunity to make a proffer before the trial judge walked off the bench). Surprisingly and troublingly, the Appellee here has argued that the record is devoid of any request to proffer and that this argument has been waived. The following colloquy belies this argument:

THE HEARING OFFICER: . . . if you want to put anything on the record, I'll give you five minutes to do it.

MS: HOSKINS [County's attorney]: We can't do that ma'am. I'm sorry but either testimony has been closed or it's going to be opened. If he puts something on the record, we have to have the opportunity to rebut it. Testimony is closed. Testimony is closed.

THE HEARING OFFICER: She has a point. We have gone back and forth, around and around with the same facts, same statements. We haven't presented anything new, as I stated before, in the last hour, except for Officer Rodriguez' testimony.

MR. SHROUDER: What change was the conclusion that the name change MS. HOSKINS: You can always appeal her decision sir. MR. SNAPP: I would have a point to appeal, to lock in.

MS. HOSKINS: The hearing is over. The hearing is over. The hearing is over. The Hearing Officer offered Snapp's attorney an opportunity to make a proffer. However, this offer was co-opted by the County's attorney, who repeatedly overstepped her bounds by proclaiming that "the hearing is over." Rather than assert her authority and permit Snapp's counsel to proceed with the proffer, the Hearing [*4] Officer allowed the County's attorney to lead her into error. As a result, Snapp was denied due process. The County's waiver argument is entirely without merit.

Snapp also asserts that not only did the County fail to present competent substantial evidence to show that Snapp lacked a valid certificate of use at the time of the citation, the evidence before the Hearing Officer shows the contrary. Code section 33-8(a) (Certificate of use) provides that:

No structure, other than a single-family residence or duplex, shall be used or any existing use enlarged, or any new use made of any land, body of water, or structure, without first obtaining a certificate of use (C.U.) therefor from the Department. Said certificate of use shall be required for each individual business and each multi-family building located within unincorporated Miami-Dade County.

Testimony from the County's witnesses established that the Notice of Violation was based upon an incomplete computer search. Quite tellingly, the County's attorney admitted that the basis of the citation was grounded upon an incomplete search.

MS. HOSKIN: So, for the record, the County is not stating that the report is a complete report as far as what may or may not exist on the property as far as the use. In fact, it doesn't, but that report was what was pulled when the violation was issued. So the basis of the Officer's issuance of the citation was what she had as far as the report.

Snapp on the other hand presented evidence that it held a valid C.U. at the time of the prior citation including: the letter from Snapp's previous attorney; the dismissal of the prior citation; and testimony from Mr. Snapp that Snapp never owned Lots 42-44, and that the Lot numbers on the 1974 C.U. / Building Permit were incorrect. While recognizing that the circuit court is not free to re-weigh or [*5] reevaluate the evidence presented below, Miami-Dade County v. Reyes, 772 So. 2d 24, 28 (Fla. 3d DCA 2000), we find that the County did not present competent substantial evidence to meet its burden by the preponderance of the evidence that Snapp violated Code section 33-8.

As Snapp was denied procedural due process and since the Hearing Officer's decision was not supported by competent substantial evidence, the decision of the Hearing Officer is hereby QUASHED.

WALSH and SANTOVENIA, J.J. concur. Copies provided to all counsel of record